(The first part of this story [see link at bottom of page] looked at a case involving asbestos at a local jobsite and the legal fallout.)
A Comox Valley’s plumber’s long-time battle over asbestos on job sites has found him out of work, being dismissed from an employer against whom he filed a complaint in May 2019, though the employer disputes that it was related to the complaint.
While David Ian Hamilton has pursued action against the company, Apex Plumbing and Heating, which in turn has claimed he’s harassing them, he has been fighting asbestos on other fronts.
When symptoms began
In the fall of 2019, Hamilton obtained a copy of the WorkSafeBC stop-work order for a Comox worksite. He has tried to push them to impose a stop-operations order for the company. An agency spokesperson said it can stop work at employers’ other worksites, but it needs reasonable grounds.
Hamilton also has had injury claims, including a shoulder injury, but the key questions surround trauma associated with the stress of fighting over asbestos. WorkSafeBC is accepting his psychological condition, which he says is precedent-setting in that workers can file over asbestos without having to wait for the onset of a physical condition like asbestosis. However, Hamilton disagrees with their take he developed the condition only after getting the report concerning the Comox church in October 2019. He has a psychiatric evaluation from 2012 in hand that points to PTSD and anxiety over asbestos at work, dating back to his Lower Mainland days.
“The events that culminated in his present referral seemed to have started in 2008,” the report stated.
It outlines his patient history, including issues with anger and frustration and notes, “He has a strong sense of what is right…. He feels he has inherited that from his grandfather who always stood up for what was right.”
WorkSafeBC’s own assessment from early 2021 acknowledges this previous case history, saying Hamilton experienced anxiety and anger in 2012, which had been triggered by issues “similar to those falling under the current claim.”
Hamilton though says this assessment is only a report and not the decision. A spokesperson confirmed, “On Oct. 31, 2019, the worker learned that WorkSafeBC had issued a stop-work order to the job site for the improper handling of asbestos. This is the date when the worker’s symptoms began. Our Review Division determined that the Oct. 31, 2019 incident was compensable for this reason, and any benefit entitlement would start from this date.”
Hamilton is also putting his name forward as lead plaintiff in a class-action suit concerning all workers’ compensation boards across Canada. A friend and former colleague has compared Hamilton to working-class movie hero Norma Rae, and while he might feel alone, he is far from it. In fact, the asbestos situation is ambiguous in the province. In January, an article in a trade publication, Construct Connect, ran with the headline, “Private sector and unions filling B.C. void in asbestos training” and underscored the lack of training. Sometimes, workers are even unclear about basic problems like facial hair with wearing respiratory equipment. Andrew Swan, health and safety trainer for the Finishing Trades Institute of B.C., told the Record there are concerns around standards as to what the training entails, so they created programs to protect workers. Part of the challenge is educating workers so they know they have rights, but they first need to know there’s a problem.
“You can’t refuse unsafe work if you don’t know it’s unsafe,” he said.
Some employers are good while others are not, but Swan points out WorkSafe’s own magazine routinely highlights infractions involving asbestos.
“It will boggle your mind how much asbestos stuff is on there,” he said.
He is sympathetic to the plight WorkSafeBC faces over contaminants like asbestos, lead, mould, and heavy metals, and he respects their public awareness work but would like to see more enforcement.
“It would take the fly-by-nights out of business,” he said.
Forgotten but not gone
WorkSafeBC has operated its Asbestos Initiative Program since 2016, which includes education, outreach, consultation and enforcement. Beyond this, it conducted almost 3,000 inspections in 2020, issued almost 1,500 asbestos-related orders, of which 959 had potential as a high-risk violation, and administered 85 asbestos-related penalties.
During a round table discussion with the Comox Strathcona Waste Management in June, a guest speaker, Unbuilders’ Adam Corneil said traditional house demolition, though cheap and quick, wastes valuable old wood and unearths hazardous materials such as asbestos. His company’s deconstruction projects typically get a couple of abatement callbacks to remove more asbestos “once we peel layers back,” as many have the old material.
“We’re still exposing our community and our transfer stations to these contaminants,” he said.
All this suggests asbestos is the reverse of the old saying, “gone but not forgotten.” That some in the industry recognize the problem comes as no consolation to Hamilton. As he knows, whistleblowing is a risky business. The federal government has legislation, but the situation is murkier for people outside of government, according to Lecker & Associates, a Toronto law firm for disability and employment issues. As well, an International Bar Association report this year ranked 62 countries on whistleblower legislation and found Canada tied for last with Lebanon and Norway, as each only met one of 20 best practices criteria.
In Hamilton’s situation, he pointed out a serious safety risk that brought some kind of enforcement, though not to the extent he had hoped. Now, he’s found himself in the courts and out of a job again.
A June 24 WorkSafeBC letter informed Hamilton of his approved rehabilitation plan for a shoulder strain injury, noting the case manager determined he could not return to his pre-injury work as a plumber/gasfitter. Four pages in, the letter states WorkSafe is developing a plan for him to get a commercial truck licence, though he would not be suited to jobs needing him to load and unload cargo by hand. It continues that, beyond the shoulder injury, Hamilton cannot return to his old career because he has adjustment disorder. It cites his “long history of challenging interpersonal interactions” and adds he will likely perform better at jobs where he can be independent and autonomous and that “do not need to demonstrate significant empathy for others.”
In one hand then, Hamilton has a report citing his sense of right and wrong; in the other, he has a letter suggesting he lacks empathy. The career change, he adds, would mean a drop in income based on his experience.
“They’re threatening to cut me off,” he said.
The letter’s remarks about empathy aside, Hamilton has found some guidance in his battles through words. He talks about author Henry David Thoreau and his writings on civil disobedience.
“He’s inspired me a great deal,” he says.
Hamilton even makes a crack about becoming a safety inspector and admits he has applied to WorkSafeBC to no avail. As a whistleblower, albeit a reluctant one, he’d settle on exercising his rights, having greater safety enforcement of asbestos and getting the agency to accept the extent of his psychiatric condition.
“I know I’m banging my head against a wall,” he said.